State Of West Va. v. Greer.

Decision Date27 October 1883
Citation22 W.Va. 800
PartiesState of West Virginia v. Greer.
CourtWest Virginia Supreme Court
1. It is the right of the prisoner in a criminal case to be tried in the

county, where the alleged offence was committed; a right, which the State cannot take from him. (p. 805.)

2. But on the prisoner's petition, and for good cause shown, he may

have the venue changed to some other county, (p. 805.)

3. The burden is on the prisoner to show to the satisfaction of the

court, good cause to have the trial of the case removed; and such cause must exist at the time the application is made, (p. 805.)

4. Where a prisoner indicted for murder showed, that the sheriff of

the county was against him and wrote a letter calculated to prejudice hint, which was published in a newspaper printed and circulated in the prisoner's county, and great excitement was shown to exist, and ten months after the homicide threats of lynching him were made by a mob, the most of whom lived in or near the county-seat, where he would have to be tried. Held:

Good cause was shown for a change of venue. (p. 808.)

5. In empanelling a jury in a capital case a proposed juror examined

on his voir dire, who in answer to a question propounded by the court says, he has conscientious scruples against inflicting the death-penalty, is incompetent and is properly rejected by the court, although he says he will be governed by the law and the evidence. (p. 809.)

6. Since our statute gives a jury a discretion, when they find a pris-

oner guilty of murder in the first degree, to say he shall be punished by imprisonment in the penitentiary, it is more important to the State, that juries should have no conscientious scruples against inflicting the death penalty. (p. 809.)

7. Proceeding in a trial in the absence of the prisoner in a felony

case is fatal to the verdict. It is absolutely necessary, that the prisoner shall be present in court, when anything is done in his case in any way affecting his interest, (p. 811.)

8. Where in a murder-trial the State proceeded to cross-examine a

witness during the absence of the prisoner, the verdict will be set aside, although the court, when the prisoner was present, instructed the jury to disregard the evidence, and the State proceeded to ask the same-questions of the witness and received the same answers. (p. 810.)

9. An instruction calculated to mislead the jury should be refused.

(p. 813.)

10. It is manifestly improper to instruct the jury as to the weight of

the evidence, (p. 813.)

Qucere: Will a verdict be set aside, because the attorney for the State in a felony case contrary to tin; statute comments on the fact, that the prisoner was not examined as a witness in his own behalf?

11. An instruction should not be given, that refers to the facts, upon

which it is predicated, as "under the circumstances shown in evidence." It leaves the jury to ascertain what the circumstances are, and they may understand the circumstances in such a way as that the law propounded in the instruction would not be applicable. (p. 815.)

12. The 10th and 11th points in the syllabus in Cam's Case, 20 W.

Va. 079, re-asserted. (p. 816.)

13. An instruction must be relevant to the evidence in the case; if it

is not and is calculated to mislead the jury, it is error to give it." (p. 816.;

14. An instruction is correct, which informs the jury that the pris-

oner cannot shield himself under the plea of self-defence, if he had reason to believe and did believe, that the assaulting party only intended to commit a trespass, and did not intend to take life or inflict great bodily harm. (p. 817.)

15. The right of self-defence may be exercised in behalf of a brother

or a stranger. (p. 818.)

16. What one may do in behalf of himself, when threatened with

death or great bodily harm, he may do in behalf of a brother; but if the brother was in fault in provoking an assault, that brother must retreat as far as he safely can, before his brother would be justified, in taking the life of his assailant in defence of the brother. (p. 819.)

17. But if the brother was so drunk, as not to be mentally able to

know his duty to retreat, or was physically unable to retreat, a brother is not bound to stand by and see him killed or suffer great bodily harm, because he does not under such circumstances retreat. (p. 819.)

18. The 14th point of the syllabus in Cain's Case, 20 W. Va. 679,

re-asserted, (p. 819.)

19. Upon a trial for murder the use of a deadly weapon being proved,

and the prisoner relying on self-defence to excuse him for the use of the weapon, the burden of showing such excuse is on the prisoner, and to avail him, such defence must be proven by a preponderance of the evidence. (p. 820.)

20. A new trial will not be granted in a criminal case for matter that

is a principal cause of challenge to a juror, which existed before he was elected and sworn as such juror, but which was unknown to the prisoner, until after the verdict, and which could not have been discovered by the exercise of ordinary diligence, unless it appears from the whole case that the prisoner suffered injustice from the fact that such juror served upon the case, (p. 820.)

21. The plain meaning of the words, "unless it appears from the

whole case, that the prisoner suffered injustice from the fact that the juror served upon the case" is "unless it appears from the ivhole case as shown by the evidence submitted to the court (and not from the evidence before the jury) that the prisoner suffered injustice from the fact that the juror served upon the case." In such case the trial-court upon a motion for a new trial upon such ground should look into the affidavits and other evidence to sustain the motion and also the evidence to defeat it, and from that determine whether the juror, who had before the trial expressed his opinion as to the guilt of the accused, had expressed such opinion from a partial knowledge of the case, but that his mind was really unbiased, so that he could impartially try the accused upon the charge, or whether he had prejudged the case and was determined to find him guilty without regard to the evidence. And if from such evidence it should appear, that a juror had prejudged the case, the court would assume, that the prisoner had suffered injustice by reason of such juror trying his case; and it would be the duty of the court under such circumstances to set aside the verdict and grant a new trial; and if the motion were overruled, the Appellate Court on writ of error would reverse the judgment, set aside the verdict and grant a new trial for such case. (p. 820.)

22. The secret drinking of intoxicating liquor by the jury, while in

their room deliberating upon a murder-case, is gross misbehavior, and raises the presumption, that the prisoner was injured thereby, and the burden is on the State in such a case to show beyond a reasonable doubt that the prisoner was not injured by such misconduct. (p. 826.)

23. Where the deputy sheriff having the jury in charge admits, that

liquor in sufficient quantities to make the jury or some of them intoxicated was taken by him to the jury-room on the day the verdict was rendered, the presumption arising therefrom that the prisoner was injured thereby is not rebutted by the affidavit of the guilty deputy, that none of the jury were intoxicated, (p. 826.)

24. Though the jury have no authority to fix the term of imprison-

ment, yet such fixing of the term by the jury is mere surplusage; and the verdict of guilty is good, and the imprisonment is the act of the court. (p. 829.)

The opinion contains a statement of the facts of the case.

John A. Hutchinson, Charles K. Hogg, R. S. Brown and C. S. Br oxen for plaintiff' in error.

Attorney-General Watts for the State.

Johnson, President:

On the 2d day of March, 1882, James A. Greer was indicted in the circuit court of Jackson county for the murder of Eobcrt G. Maguire on the 19th of January, 1882. On the 6th day of November, 1882, a jury was empaneled to try the case on the issue found; and on the 18th day of the same month the jury rendered the following verdict: "We the jury find the prisoner, James A. Greer, not guilty of murder in the first degree, but we the jury do find the priso- ner, James A. Greer, guilty of murder in the second degree and ascertain and fix the term of his imprisonment in the penitentiary of this State at ten years." Thereupon the prisoner moved the court to set aside the verdict, because it was contrary to the law and evidence, and for other reasons, which motion being argued by counsel and considered by the court was overruled; and the prisoner having nothing further to urge against judgment being entered, the court entered the following judgment:" And the court proceeding to ascertain and fix the term of said prisoner's confinement in the penitentiary of this State, the court doth ascertain and fix such term of confinement of said prisoner in said penitentiary at ten years. It is therefore considered by the court, that the said James A. Greer be imprisoned in the penitentiary of this State for the term of ten years, the period by the court ascertained and fixed as aforesaid, and also the period by the jury in their verdict ascertained. It is ordered', that the sheriff of this county do upon the rising of this court, or as soon thereafter as may be, remove and safely convey the said James A. Greer from the jail of this county to the said penitentiary of this State, therein to be kept and imprisoned and treated in the maimer directed by law for the period aforesaid."

On the trial the prisoner saved twelve several bills of exceptions to rulings of the court; and to the said judgment he obtained a writ of error.

From the evidence, which is certified, it appears, that on the 19th day of January, 1882, John M. Greer was drunk, and on the street in Ripley, the county seat of said Jackson county, called the deceased a " damned cowardly scoundrel and...

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